Writ Petition (Crl.) No. 78 of 2013. Case: Samrendra Beura Vs Union of India (UOI) and Ors.. Supreme Court (India)

Case NumberWrit Petition (Crl.) No. 78 of 2013
CounselFor Appellant: Merusagar Samantaray, Adv. and For Respondents: B. V. Balaram Das, Adv.
JudgesB.S. Chauhan and Dipak Misra, JJ.
IssueAir Force Act, 1950 - Sections 39, 102, 103, 104, 107, 107(1), 109, 119, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 154, 161(1), 164, 167, 169A, 180(1), 184; Army Act, 1950 - Section 167; Navy Act, 1957 - Sections 151, 151(1), 151(2), 151(3); Code of Criminal...
Citation2013 CriLJ 3040
Judgement DateMay 20, 2013
CourtSupreme Court (India)


Dipak Misra, J.

1. In this writ petition, preferred under Article 32 of the Constitution of India, the Petitioner, an employee of Indian Air Force, who has been found guilty of the offence Under Section 39(a) of The Air Force Act, 1950 (for brevity "the Act") and has been awarded sentence to suffer rigorous imprisonment for three months along with other punishments by order dated 15.3.2013 which has been affirmed by the Competent Authority Under Section 161(1) of the said enactment, has prayed for issue of a writ of habeas corpus directing the Respondents to release him as he is in illegal detention because he had already spent one and half months in custody before the conviction was recorded by the court-martial.

2. The factual score, as depicted, is that the Petitioner was appointed as a Mechanical Transport Driver in the Indian Air Force on 16.12.2002. As he absented himself without leave from 9.10.2012 to 1.2.2013, a court-martial proceeding was initiated against him and, eventually, by order dated 15.3.2013, he was found guilty and was imposed the sentence of rigorous imprisonment for three months apart from dismissal from service and reduction of rank. It is put forth in the petition that the Petitioner had surrendered before the Competent Authority whereafter he was charged for the offence Under Section 39(a) of the Act. It is contended that the sentence imposed Under Section 39(a) should take into consideration the period commencing 1.2.2003 as he had surrendered to custody before the Competent Authority.

3. As the Respondents have been represented and the issue involved exclusively relates to pure realm of law, we have heard Mr. Merusagar Samantary, learned Counsel for the Petitioner, and Mr. Rakesh Khanna, learned Additional Solicitor General, and Mr. Balasubramanian, learned Counsel for the Respondents.

4. It is the admitted fact that the Petitioner surrendered to custody on 1.2.2013. There is a dispute with regard to the date of the order passed by the Competent Authority, namely, district court-martial. The learned Counsel for the Petitioner would contend that it was passed on 15.3.2013 whereas Mr. Khanna would submit that it was passed on 18.3.2013. The said disputed fact is neither material one nor would it have any impact on the adjudication of the writ petition inasmuch as the fulcrum of the matter is whether the period of custody prior to the date of passing and signing of the order by the district court-martial is to be set off in respect of the sentence imposed.

5. Section 39 which provides for absence without leave stipulates that any one who commits any offence falling under clauses...

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